Right not to suffer detriment, dismissal or redundancy for raising whistleblowing concerns. Section 47B of the Public Interest Disclosure Act (PIDA)

47B. Protected disclosures

(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.
(1A) A worker ("W") has the right not be subjected to any detriment by an act, or any deliberate failure to act, done -
(a) by another worker of W's employer in the course of that other worker's employment, or
(b) by an agent of W's employer with the employer's authority,
on the ground that W has made a protected disclosure.
(1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer.
(1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer.
(1D) In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker -
(a) from doing that thing, or
(b) from doing anything of that description.
(1E) A worker or agent of W's employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if -
(a) the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and
(b) it is reasonable for the worker or agent to rely on the statement.
But this does not prevent the employer from being liable by reason of subsection (1B).[Subsections (1A) - (1E) were inserted by the Enterprise and Regulatory Reform Act 2013 and take effect from 25 June 2013]

(2) Except where the worker is an employee who is dismissed in circumstances in which, by virtue of section 197, Part X does not apply to the dismissal, this section does not apply where -
(a) the worker is an employee, and
(b) the detriment in question amounts to dismissal (within the meaning of that Part).

(3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, "worker", "worker's contract", "employment" and "employer" have the extended meaning given by section 43K.

EXPLANATORY NOTE

This section protects employees from action short of dismissal and protects other workers (who cannot be dismissed, as they are not technically employees) from any victimisation, including the termination of their contract. Protection for employees against dismissal and redundancy is provided in ss.5 and 6, below. Note that no qualifying period or upper age limit applies to this protection (see s.7 below).

The section does not confer a right of action against any third party who victimised the worker, such as fellow employees, individual managers or clients of the employer (unless that third party comes within the extended definition of employer in s.43K(2)). However, the failure of the employer to protect the worker against such action by others might itself be a detriment.

Subs. (1)detriment

An employer subjects a worker to a detriment not only if he acts to the worker's detriment (for example, offering less work to a casual worker, Almond v Alphabet Children's Services; disciplining the whistleblower, Kay v Northumberland Healthcare NHS Trust; threatening to destroy the whistleblower, Bhatia v Sterlite Industries; re-advertising of the whistleblower's job, Brown v Welsh Refugee Council; withdrawing the promise of a permanent post, Bhadresa v SRA; or disclosing the whistleblower's identity contrary to assurances, Carroll v Grt. Manchester County Fire Service) but also if he causes him detriment by deliberately failing to act. Examples of the latter have included failing to investigate a concern (see A v B & C and Boughton v National Tyres) and failing to inform the whistleblower of the progress of the investigation (Knight v LB Harrow).

Tribunals have held the following did not on their facts amount to a detriment: moving the whistleblower to an open plan office, Chattenton v Sunderland CC; the continuation of bad relations with a manager, Allison v Sefton MBC; or the demotion and transfer of the manager complained about, Chubb v Care First Partnership.

Detriment, it is submitted, also includes the threat of a detriment. As the Government spokesman (Hansard HL, 5 June 1998, col. 634) said "An employee who has made a disclosure to his employer could be threatened with relocation to a remote branch of a company, for instance, where promotion prospects are poorer. That kind of threat is a detriment and even though the worker can be assured that the employer could not lawfully carry out the threat, the fear of the threat may well amount to detrimental action. Any threat which puts a worker at a disadvantage constitutes in itself detrimental action". See also Mennell v Newell & Wright [1997] IRLR 519 where the Court of Appeal agreed with the EAT (while allowing an appeal on other grounds) that asserting a threatened infringement of a statutory right came within s.104 ERA.

Causation: 'on the ground that'
Under this section, it is for the employer to explain the reason for any detrimental action and so there is an evidential presumption on it. The same test on causation exists in discrimination law and its application there was clarified by the House of Lords in Chief Constable of West Yorkshire Police v Khan (2001) ICR 1065. In Aspinall v MSI Mech Forge, the EAT held that as to causation issues under PIDA, tribunals should adopt the same approach, that the disclosure has to be the "real reason, the core reason, the causa causans, the motive for the treatment complained of". As to causation generally, see the notes on section 5.

This issue was considered in Hayes v Reed Social Care & Bradford MDC where the tribunal stated "there may be cases in which an employer has a number of grounds for taking action detrimental to an employee which include the making of a protected disclosure. What matters is whether the ground was significant or substantial. Given that the phrase 'on the ground' in section 47B is identical to the phrases used in the Race Relations Act and the Sex Discrimination Act, we ignore any question of motive." It was also considered in Borley v Suffolk CC, where the tribunal stated that to establish causation under this provision it was not necessary to prove that reprisal was the employer's motive or its intention.

Subs. (2)
This provides that an employee who is dismissed cannot claim under this section but must claim under ss.5 and 6 PIDA (ss.103A and 105(6) ERA). However, the single exception to this is where an employee is on a fixed term contract of more than a year and he has agreed in accordance with s.197 ERA to waive any claim for unfair dismissal if his contract is not renewed. In such a case, an employee can bring a claim that his employment contract was not renewed because he had made a protected disclosure.

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